GAO Sustains Protest on Past Performance and Tradeoff: Why Enviremedial Services, Inc. Matters for Contractors

In a notable decision, the Government Accountability Office sustained a protest by Enviremedial Services, Inc. (ESI) challenging the U.S. Army Corps of Engineers’ best-value award for multi-site facilities maintenance across the 81st Readiness Division. Although GAO dismissed ESI’s unbalanced pricing allegation for lack of a credible showing that any line items were overstated, it sustained on two fronts: flaws in the relevancy and attribution of the awardee’s past performance and an inadequately documented tradeoff that leaned too heavily on adjectival ratings rather than a qualitative comparison.

The solicitation, a FAR Part 15 small-business set-aside, made price and two non-price factors “approximately equal,” with past performance evaluated for both relevancy and quality. ESI’s proposal received an “Outstanding” for understanding the work and a “Substantial Confidence” past performance rating; the awardee, BryMak & Associates, received “Good” and “Substantial Confidence,” respectively, with a roughly 2.1% lower evaluated price. GAO found no error in the agency’s price balance analysis, but it concluded the past performance evaluation departed from the solicitation’s explicit rules and lacked sufficient documentation.

First, the RFP restricted “relevant” past performance to prime contracts performed by the offeror or its disclosed team members. GAO determined the agency attributed a Fort Campbell project to BryMak even though the prime contractor of record was BryMak Eagle Pro LLC—an affiliated but distinct legal entity that BryMak did not identify as a team member. The record did not establish that performance by that affiliate should be credited to the offeror under the RFP’s terms, nor did the proposal explain how the affiliate’s resources would affect the offeror’s performance. Second, the agency credited BryMak with work performed by its teaming partner, CB Facilities Solutions (CBFS), and even described two CBFS projects as including “work by BryMak,” a conclusion the agency later characterized as a typographical error. GAO found the contemporaneous record inconsistent with that explanation and insufficiently reasoned about CBFS’s role when it performed via a joint venture.

These documentation and attribution missteps mattered because the RFP promised greater consideration for past performance that mirrored the requirement’s scope—preventive maintenance and service calls across multiple dispersed sites and a large geographic area using similar equipment. ESI submitted five “very relevant” contracts closely aligned with the instant requirement, four of which supported the same Army Readiness Division across a region. BryMak, by contrast, offered fewer “very relevant” references of comparable breadth. Yet the source selection decision treated the offerors’ past performance as essentially equal, citing only shared adjectival ratings and concluding ESI’s “slightly higher” technical rating did not justify the price premium.

GAO reiterated a familiar but often overlooked lesson: adjectival ratings are merely guides. When factors are approximately equal to price, the agency must perform and document a qualitative comparison keyed to the solicitation’s specific relevancy criteria. Here, the failure to do so—and reliance on a past performance record marred by attribution errors—left GAO unable to conclude the tradeoff was reasonable, especially given the narrow 2.1% price delta. GAO recommended reevaluation consistent with the RFP and decision and reimbursement of protest costs.

For federal contractors, the significance is practical and immediate. First, prime-only past performance restrictions have teeth: if you rely on affiliates or JV experience, you must clearly disclose relationships, roles, and how those resources will inform your performance. Second, teaming partner and JV references must be tied to concrete, documented roles that are predictive of your work on the instant requirement. Third, agencies must go beyond labels—if your references better match the stated relevancy attributes (scope, dispersion, geography, equipment), insist that the tradeoff analysis confront those qualitative differences. Finally, even when unbalanced pricing claims fail, well-founded challenges to past performance attribution and tradeoff documentation can carry the day.

Credit: GAO decision prepared by the Office of General Counsel (Christopher Alwood and Alexander O. Levine); counsel for the parties included Anuj Vohra, Isaac D. Schabes, and Emily P. Golchini for the protester; Lucas T. Hanback, Jules L. Szanton, and Timothy A. Wieroniey for the intervenor; and Brian P. Nutter for the agency.

Disclaimer: This summary is for informational purposes only, may contain inadvertent errors or omissions, and does not constitute legal advice. Always consult counsel about specific facts and circumstances.